JACOBS FARM/DEL CABO, INC V. WESTERN FARM SERVICE, INC






Filed 12/20/10






CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JACOBS FARM/DEL CABO, INC., Plaintiff and Respondent, v. WESTERN FARM SERVICE, INC., Defendant and Appellant.

H033718 (Santa Cruz County Super. Ct. No. CV157041)

Plaintiff Jacobs Farm/Del Cabo, Inc. (Jacobs), sued defendant Western Farm Service, Inc. (Western Farm), alleging that pesticides defendant applied to fields near plaintiff’s farm migrated to plaintiff’s land, contaminated plaintiff’s crop, and rendered the crop unmarketable. Plaintiff sued defendant for crop losses it suffered in 2006 and for an injunction to prevent further pesticide applications in 2007. By the time of trial in 2008, the injunction issue was moot; both the 2006 and the 2007 crops had been contaminated by the migrating pesticide. A jury found defendant liable in negligence, trespass, and nuisance and awarded plaintiff $1 million for the 2007 loss but nothing for 2006.
On appeal, defendant raises several arguments relating to the overall viability of plaintiff’s claims in light of the comprehensive statutory scheme governing the use of pesticides in California. (Food & Agr. Code, § 11401 et seq.; Cal. Code Regs., tit. 3, § 6000 et seq., collectively, the pesticide laws.)^[1] Defendant argues that the superior court lacked jurisdiction, except as allowed by the pesticide laws, to issue an injunction controlling the place where pesticides may be applied. Because that issue is not properly before us, we do not reach it. Defendant also raises several challenges to plaintiff’s common law claims for damages. We reject these on their merits. We hold that plaintiff’s causes of action for negligence, trespass, and nuisance are not displaced by the pesticide laws; the statutory scheme leaves ample room for such claims. We also find that the negligence and trespass causes of action were not barred by an administrative determination that defendant had complied with the pesticide laws, that the trial court did not err by instructing the jury in the doctrine of negligence per se, and that Civil Code section 3482 does not bar the nuisance cause of action. Accordingly, we shall affirm.
I. Background
Plaintiff is a farming company that leases approximately 120 acres in Wilder Ranch State Park (Wilder Ranch) where it grows organic crops, including culinary herbs such as rosemary, dill, and cilantro. Defendant is a dealer in agricultural chemicals who advises farmers on the use of pesticides, recommends and sells products for control of pests, and also provides pesticide application services.
Plaintiff’s Wilder Ranch fields are surrounded on three sides by other farms and on the south by the Pacific Ocean. The entire area, including the Wilder Ranch property, had been farmed conventionally and planted in Brussels sprouts for most of the past 50 years or more. Plaintiff began its organic farming enterprise at Wilder Ranch in 1998 and was certified as an organic farm under the National Organic Program in 2000. By 2006, when the incidents giving rise to this suit first arose, two of the surrounding farms were still planted in conventionally grown Brussels sprouts.
During the 2006 growing season, defendant recommended and applied certain organophosphate pesticides[2] to the Brussels sprouts fields adjacent to Wilder Ranch. These pesticides are important to the Brussels sprouts industry, having been used successfully for over 30 years to kill or retard the growth of pests that could otherwise destroy the growing crop. Defendant applied the pesticides pursuant to permits issued by the Santa Cruz County Agricultural Commissioner (commissioner). Defendant made the applications in a manner that would prevent it from drifting to nontarget crops during the application process. Nevertheless, some time after it was applied, some of the pesticide dispersed into the air (volatilized) and moved with the fog or the wind over plaintiff’s fields. This was a problem because herbs like rosemary and dill are particularly susceptible to picking up the volatilized chemical. It was also a problem because the federal Environmental Protection Agency (EPA) sets no maximum tolerance level for organophosphate pesticide residue on those herbs. Herbs with any detectable amount of the pesticides cannot be sold--either as organic or conventional--period. Thus, when the pesticide volatilized and moved over plaintiff’s farm, the herbs picked up the airborne chemicals and the crop was ruined.
Plaintiff first discovered the pesticide residue in October 2006, when one of plaintiff’s wholesale customers alerted plaintiff to the results of tests it conducted on herbs grown at Wilder Ranch. Plaintiff reported the finding to the commissioner and filed a crop-loss report in November 2006. Plaintiff conducted its own investigation into the source of the contamination and, as part of that investigation, obtained a list from the commissioner’s office, setting forth the names and pesticide permit numbers of all growers within a five mile radius of plaintiff’s fields. Plaintiff determined that defendant had applied the pesticides on the fields closest to Wilder Ranch and, in February 2007, plaintiff’s attorney informed defendant that plaintiff held it responsible for the contamination.
The deputy commissioner, Lisa LeCoump, conducted the commissioner’s investigation to determine if the pesticide residue on the herbs was caused by a violation of the pesticide laws. In particular, the deputy commissioner’s investigation focused upon whether defendant had violated title 3, section 6614, which provides, among other things, that “[n]otwithstanding that substantial drift will be prevented,” a pesticide applicator must defer or cease a pesticide application if there is a “reasonable possibility of damage” to nontarget crops. (Tit. 3, § 6614, subd. (b)(2).) In her report dated March 5, 2007, the deputy commissioner noted that defendant’s responsibility under the regulation was to avoid drift, which she interpreted to mean the movement of the pesticide away from the target crops at or around the time the pesticide is applied. The commissioner did not hold the pesticide applicator responsible for movement of the pesticide after the application, “such as by translocation, volatilization, evaporation or other forms of ‘lift off.’ ” Applying that interpretation of the regulation, the deputy commissioner found no evidence that defendant had violated title 3, section 6614. The commissioner did not add any conditions to defendant’s pesticide application permits for the 2007 growing season.
Plaintiff did not pursue to finality any administrative challenge to the deputy commissioner’s conclusion that defendant had not violated the law nor to the commissioner’s failure to add conditions to the permits for the 2007 growing season. According to plaintiff’s founder, Laurence Jacobs, the commissioner’s office had told him there was nothing it could do about postapplication drift.
In April 2007, plaintiff’s rosemary crop showed low but detectable levels of pesticide, prompting plaintiff to file a complaint in the superior court on May 8, 2007. The complaint alleged causes of action for negligence, trespass, and nuisance and prayed for damages and an injunction. Plaintiff sued only defendant. Plaintiff did not sue the commissioner or the farm operators who had hired defendant to spray their fields. The complaint alleged that defendant was responsible for contaminating plaintiff’s crop in 2006 and, that “Plaintiff fears that unless Defendant is enjoined from causing hazardous pesticides to appear in Wilder Ranch Farm organic crop fields, Plaintiff will suffer irreparable harm to the crops planted for harvest in 2007 and to soils in which the crops are being grown.” The local newspaper published a letter from Jacobs on or about June 10, 2007, in which he complained that under current law he could not stop the pesticide spraying that damaged his crop and that he had undertaken this lawsuit to change the law.
The trial court issued a temporary restraining order as plaintiff had requested, but dissolved the order in June 2007 and denied plaintiff’s request for a preliminary injunction. The court noted that the deputy commissioner had found no violation of the pesticide laws and, as it happened, crop samples taken in May showed no detectable pesticide on the herbs.
During the spring of 2007, defendant had voluntarily decided to use different types of pesticides to control pests in the Brussels sprouts fields and had advised plaintiff’s personnel whenever it planned to spray. But by July of that year, the pest population had increased to the point that defendant decided to return to the use of organophosphates, this time trying a product other than the one it had used in 2006, adding drift retardant, and taking other precautions in an attempt to prevent postapplication drift. Plaintiff continued testing its crop for the presence of organophosphate pesticide. Tests in July, August, and September 2007 came back positive for pesticide residue. Plaintiff filed another crop-loss report. The deputy commissioner performed a second investigation and again found no violation of the pesticide laws.
On September 25, 2007, plaintiff and defendant stipulated to a preliminary injunction by which defendant agreed not to apply the subject pesticides on two fields closest to plaintiff’s fields, leaving a 1.5 mile buffer zone surrounding plaintiff’s crop. In April 2008, the commissioner placed a condition upon defendant’s pesticide application permits, requiring a half-mile buffer zone between the sprayed areas and plaintiff’s fields.
II. Trial of Plaintiff’s Complaint for Damages
Trial commenced in September 2008. Given the now-mandatory half-mile buffer zone, trial focused solely upon plaintiff’s claims for damages. Plaintiff’s experts testified that the volatilization phenomenon has been known to scientists for years. In areas where there is frequent coastal fog, such as Wilder Ranch, volatilization is common. The experts concluded that the organophosphate residue on plaintiff’s crop had been deposited there by the volatilization process and that the source of the residue was the pesticides that defendant applied to one or another of the fields near plaintiff’s farm.
Although scientists may have known about volatilization, none of the individuals involved in this case had actually known about it prior to the discovery of the residue on plaintiff’s crop in October 2006. Jacobs did not know about volatilization until he began looking into why his crop turned up with the pesticide in 2006. William Rodoni, a third generation Brussels sprouts farmer whose fields were adjacent to plaintiff’s, was surprised to learn that the pesticides could move off the target site. The deputy commissioner had assumed that once the pesticides were sprayed, they “pretty much stayed on the crop where they were sprayed.” It was in the course of investigating plaintiff’s crop-loss report that she first learned of a study from the 1980s showing pesticide contamination of a dill crop at Wilder Ranch caused by volatilized pesticide.
Plaintiff argued that defendant should have been aware of the possibility of volatilization and that had been negligent in failing to keep abreast of the scientific literature. A good portion of plaintiff’s case was an attack upon the deputy commissioner’s interpretation of title 3, section 6614. As plaintiff interpreted the regulation, a pesticide applicator must defer or cease a pesticide application if there is a reasonable possibility of damage to nontarget crops regardless of when that damage might take place. This was different than the deputy commissioner’s understanding, which was that a pesticide applicator is not responsible for that which occurs after the pesticide is applied.
The deputy commissioner maintained her position at trial. Plaintiff’s counsel asked, “Now, I don’t think there’s any confusion that to allow spray drift to leave a target site and injure another person’s crop is against the laws and regulations, is it not‌” The deputy commissioner replied, “Yes. But the definition of ‘drift’ is the movement during the application, so if it left after the application it’s not under our jurisdiction.” The deputy commissioner later conceded that her answer, that the commissioner’s office does not have jurisdiction over postapplication drift, may not have been correct. Indeed, she acknowledged that the commissioner had imposed the buffer-zone condition upon defendant’s permits for 2008 to help prevent postapplication drift. Nevertheless, she insisted “it’s not a violation [of the regulation] if the material is moving offsite after the application. It’s not considered drift, so it’s not a violation of the drift regulation.”
Defendant’s theory was that it had followed the law, complied with the requirements of its permits, applied the pesticides with due care, and was not responsible for what happened after it finished the job. Douglas Okumura, a recently retired assistant director of the Department of Pesticide Regulation (DPR), supported the deputy commissioner’s view of title 3, section 6614. He stated that the DPR holds a pesticide applicator responsible for drift before and during an application but not for movement that happens later. Defendant also argued that plaintiff was contributorily negligent in choosing to plant a vulnerable crop in an area surrounded by conventional Brussels sprouts farms and in failing to establish its own buffer zone between its crop and the neighboring fields.
In his argument to the jury, plaintiff’s counsel urged the jury to read and consider the letter Jacobs had published in the local newspaper, pointing out that plaintiff had filed this case specifically to change the law. And, after summarizing the deputy commissioner’s testimony that postapplication drift was not a violation of title 3, section 6614, plaintiff’s counsel told the jury: “This is your time to construe that section using the language in the regulation and apply it accordingly. Because if it isn’t in your jurisdiction, then this is a meaningless regulation. Somebody has to enforce that regulation. Here’s the time and place to do that.”
The trial court instructed the jury in the common law of negligence, trespass and nuisance, and also in the doctrine of negligence per se. With respect to negligence per se, the court instructed the jury in the language of title 3, section 6614, and told the jury, “If you decide that [defendant] violated this law and that the violation was a substantial factor in bringing about the harm, then you must find that [defendant] was negligent unless you also find that the violation was excused.” Defendant would be excused from a violation if defendant “was not able to obey the law” or if defendant “reasonably believed, from prior representations from the [DPR] or the Santa Cruz County Agricultural commissioner, that the law did not apply to other than spray drift at the time of application and it was complying with the law.”
The jury found, by a vote of nine to three, that defendant was negligent, had trespassed, had created a nuisance, and that its conduct was a substantial factor in causing harm to plaintiff. These findings did not specify whether the torts had been committed in 2006, 2007, or both, but the damages award was broken down by year. The jury awarded plaintiff zero for its 2006 crop loss and $1 million for the 2007 crop loss. Although the jury also found that plaintiff was contributorily negligent, it concluded that plaintiff’s negligence was not a substantial factor in causing the harm. The trial court denied defendant’s motions for new trial and judgment notwithstanding the verdict. Plaintiff dismissed its prayer for injunctive relief. Judgment was entered on the jury verdict. The trial court awarded attorney fees to plaintiff. Defendant has timely appealed.
III. Contentions
The gist of defendant’s contentions on appeal is that the statutory scheme governing pesticide use in California displaces common law claims to the extent such claims would have the effect of regulating the place where pesticides may be applied. The argument has two prongs. First, defendant maintains that the superior court has no jurisdiction to issue an injunction relating to pesticide use except as specifically permitted by the pesticide laws. Second, defendant argues that common law claims for damages are also displaced to the extent the claims relate only to the place where the pesticides were applied. Subsidiary arguments are that the deputy commissioner’s finding of no violation should have been given collateral estoppel effect and that the trial court erred in instructing the jury in the doctrine of negligence per se. Defendant also argues that Civil Code section 3482, which states that conduct authorized by law is not a nuisance, barred plaintiff’s nuisance cause of action.^[3] Defendant’s final argument, which we need not reach, is that reversal of the judgment requires reversal of the attorney fees award.
We begin our with a brief summary of the statutory and regulatory scheme.
IV. Discussion
A. The Statutory Scheme
It is an understatement to say that the use of pesticides in California is highly regulated. Federal and state laws govern every aspect of pesticide use, from testing, approval, and labeling of pesticides to licensing pesticide applicators and investigating complaints of pesticide-related injuries. (See 7 U.S.C. § 136 et seq.; Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 321, overruled on another ground by Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, 436-437.) California law overlays a comprehensive federal scheme with its own extensive system of statutes and regulations administered by the DPR. (Californians for Alternatives to Toxics v. Department of Food & Agriculture (2005) 136 Cal.App.4th 1, 13.) County agricultural commissioners are local appointees licensed by the director of the DPR (director). (§§ 2101, 2121.) Commissioners have broad authority over local enforcement of the pesticide laws, subject to oversight by the director. (§ 2281.)
The code sections relevant to this case are found in divisions 6 and 7 of the Food and Agricultural Code. The express purposes of the relevant provisions of divisions 6 and 7 include providing for the “safe, and efficient use of pesticides essential for production of food,” protecting the environment, pesticide workers, and public health, and encouraging the development of pest management systems that “achieve acceptable levels of control with the least possible harm to nontarget organisms and the environment.” (§ 11501.)^[4] Division 6 governs the persons operating pest control businesses. (§ 11401 et seq.) It requires, among other things, that all pest control operators be licensed by the director (§ 11701) and registered with the commissioners in all counties in which they operate (§ 11732).
Division 7 regulates the use of pesticides. (§ 12500 et seq.) Of particular interest to us is article 1 of chapter 3, division 7, pertaining to “restricted materials,” which includes the organophosphate pesticides at issue in this case. (§ 14004.5; tit. 3, § 6400; 7 U.S.C. §§ 136, 136a.) Under the provisions of this article, no person may apply agricultural pesticides classified as restricted without first obtaining a permit from the commissioner in the county where the materials are to be applied. Every permit issued “shall include conditions for use in writing.” (§ 14006.5.) The permits are site-specific and are generally issued on a yearly basis. (§ 14007; tit. 3, § 6422.) Within 24 hours of any planned application, the farm operator or the pesticide applicator must file a notice of intent with the commissioner. (Tit. 3, § 6434.) The notice of intent apprises the commissioner of the time and place of the intended applications, the product and dilution that will be used, and the identity of any sensitive areas, such as waterways, schools, livestock, and crops that “changed since the permit was issued and which may be adversely impacted” by the planned application so that the commissioner may decide whether further conditions or limitations should be imposed. (Tit. 3, §§ 6434, subd. (b)(11), 6428, subd. (c).)
Notwithstanding its permit requirements, article 1 of chapter 3, division 7, “does not relieve any person from liability for any damage to the person or property of another person which is caused by the use of any restricted material.” (§ 14003.) Moreover, the Legislature has tempered the commissioner’s permitting authority with section 14009. Under section 14009, subdivision (a), “Any interested person” may ask the commissioner to review a decision pertaining to the issuance, refusal to issue, revocation, or suspension of a permit. “A directly affected person may thereafter appeal to the director to review the commissioner’s action.” (Ibid.) The commissioner and the director must act on a request for review or appeal within 10 days (id. subds. (a) & (e)) and both are directed to conduct their reviews, “in an expeditious manner so that needed pest control measures are not adversely affected.” (Id. subd. (b).) Judicial review of any decision by the director under section 14009 may be had via a petition for writ of administrative mandamus. (Id. subd. (g); Code Civ. Proc., § 1094.5.)
At the heart of this case is title 3, section 6614. Title 3, section 6614, provides, in pertinent part, “(a) An applicator prior to and while applying a pesticide shall evaluate the equipment to be used, meteorological conditions, the property to be treated and surrounding properties to determine the likelihood of harm or damage. [¶] (b) Notwithstanding that substantial drift will be prevented, no pesticide application shall be made or continued when: [¶] . . . [¶] (2) There is a reasonable possibility of damage to nontarget crops.” (Tit. 3, § 6614, subd. (b)(2).)^[5] “ ‘Substantial drift’ means [that] the quantity of pesticide outside of the area treated is greater than that which would have resulted had the applicator used due care.” (Tit. 3, § 6000.) In general, “The use of any pesticide by any person shall be in such a manner as to prevent substantial drift to nontarget areas.” (§ 12972.)
Violation of any provision of either division 6 or 7 or any associated regulation is a misdemeanor subject to fines and imprisonment or civil penalties. (§§ 11891-11895, 12996-12999.) Any money recovered is paid to the DPR. (§ 12998.) The director or a commissioner may also seek an injunction to restrain the violation of any order made pursuant to division 6 or 7. (§§ 11895.5, 13000.1.) Section 12999.2 specifies, “The remedies or penalties provided by [division 7] are in addition to the remedies or penalties available under any other law.” Neither division authorizes monetary compensation for property damage caused by violation of the pesticide laws.
Finally, section 11501.1, subdivision (a) provides that divisions 6 and 7 “are of statewide concern and occupy the whole field of regulation regarding the registration, sale, transportation, or use of pesticides to the exclusion of all local regulation. Except as otherwise specifically provided in this code, no ordinance or regulation of local government, including, but not limited to, an action by a local governmental agency or department, a county board of supervisors or a city council, or a local regulation adopted by the use of an initiative measure, may prohibit or in any way attempt to regulate any matter relating to the registration, sale, transportation, or use of pesticides, and any of these ordinances, laws, or regulations are void and of no force or effect.”
B. Injunctive Relief
Defendant’s first argument is that the superior court has no jurisdiction to entertain a private suit for injunctive relief pertaining to the use of regulated pesticides. Defendant recognizes that the issue is moot but asks us to decide the issue due to its statewide importance. Plaintiff takes the opposite view. Plaintiff’s view is the correct one. The general rule is, “Courts do not decide abstract questions of law. An indispensable element to jurisdiction is that there be an actual controversy between parties who have an adversarial interest in the outcome of the litigation.” (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746.) Thus, courts typically do not decide moot questions since such decisions “can have no practical effect or cannot provide the parties with effective relief.” (Californians for Alternatives to Toxics v. Department of Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1069.)
In this case, the question of the court’s power to issue an injunction is moot because there is no injunction; plaintiff dismissed its prayer for injunctive relief following the verdict. Furthermore, defendant waived objection to the preliminary injunction by expressly stipulating to it. More crucially, an order granting a preliminary injunction is immediately and separately appealable. (County of San Diego v. State of California (1997) 15 Cal.4th 68, 110; Code Civ. Proc., § 904.1, subd. (a)(6).) Any attempt to challenge such an order in an appeal filed after entry of final judgment is untimely. (County of San Diego v. State of California, supra, at p. 110.) For all these reasons, the question whether, in a private civil suit, the superior court may issue an injunction controlling the place where pesticides may be applied, is a question we must leave for another day.
Although the issue is not squarely before us, we do question whether the process plaintiff employed in attempting to protect its 2007 crop was the process the Legislature had contemplated. The deputy commissioner found that defendant had not violated the law in 2006 and defendant’s permits for the 2007 growing season apparently allowed the use of the same pesticides in the same places they were allowed in 2006. ^[6] Plaintiff could have challenged the permits by way of the streamlined review process outlined in section 14009. Plaintiff had been given the names of all the surrounding growers and the permit numbers under which their pesticide applications were authorized and, therefore, could easily have found out what was going to be sprayed on the fields nearby and what conditions the commissioner had imposed. But as far as we can tell from the record, plaintiff did not object to the permit conditions as section 14009 allows. Plaintiff was understandably frustrated, trying to prevent further contamination of its herb crop, while defendant, which had been cleared of any prior unlawful conduct and had the commissioner’s explicit authorization to make the same applications in 2007, was stuck with the Hobson’s choice of making those applications and risking further damage to plaintiff’s crop, or not spraying at all and risking injury to its clients’ product. An expedited review by the commissioner and the DPR under section 14009, followed, if necessary, by judicial review pursuant to Code of Civil Procedure section 1094.5, might have resolved the matter more promptly than it was. In any event, that was all water under the bridge by the time of trial.
C. Common Law Claims for Damages
1. Scope and Standard of Review
Defendant’s remaining arguments concern the scope of the statutory scheme and its effect upon the common law claims alleged. Defendant maintains, for various reasons, that the pesticide laws bar plaintiff’s common law claims because the claims were all based upon the place where the pesticide was applied. As we understand it, defendant’s position is that only the administrative agencies charged with enforcing the pesticide laws may decide the place of application. Plaintiff maintains that the pesticide laws left all common law causes of action intact so that its complaint is not affected by the statutory scheme at all.
Although the parties describe their arguments in the language of preemption, the preemption doctrine is not strictly applicable to the questions presented, although the analysis is similar. Preemption applies where federal law supersedes state law or state law supersedes local law. (Zengen, Inc. v. Comerica Bank (2007) 41 Cal.4th 239, 247, fn. 5 (Zengen).) Under the preemption doctrine, the lower jurisdiction cannot act in the area covered by the preemptive law. In the present case there is no question that the pesticide laws preempt local regulation; section 11501.1 expressly prohibits all local ordinances on the subject. This case does not involve the preemption doctrine because it concerns allegedly conflicting provisions of co-equal state laws--state statutes and state common law. As one court said, “common law is only one of the forms of law and is no more sacred than any other. . . . [I]t may be changed at the will of the [L]egislature, unless prevented by constitutional limitations.” (People v. Hickman (1928) 204 Cal. 470, 479.) Thus, the question presented is better articulated as whether the enactment of the pesticide laws displaced the common law that previously governed the subject in dispute. (Zengen, supra, at p. 247, fn. 5.)
The rule is that statutes do not displace the common law “ ‘unless it appears that the Legislature intended to cover the entire subject or, in other words, to “occupy the field.” ’ (I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285.)” (K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 953.) Thus, our task is to decide whether, by enacting the pesticide laws, the Legislature has fully occupied the field and displaced the common law rules that plaintiff sought to apply here. (Cf. Zengen, supra, 41 Cal.4th at p. 251.) Because the questions before us call for interpretation of statutory and regulatory provisions, they are purely legal questions to which we apply the independent standard of review. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) That review is guided by settled rules, all of which are geared to ascertaining the intent of the lawmakers and avoiding an interpretation that would lead to absurd consequences. (Cypress Semiconductor Corp. v. Superior Court (2008) 163 Cal.App.4th 575, 581.)
One obvious Legislative aim, made clear by the passage of section 11501.1, is that pesticide use be regulated on a statewide basis. Regulating the subject at the state level gives growers and others in the agricultural industry some measure of predictability when choosing to use, or not to use, pesticides. The scientific expertise and judgment involved in regulating the use of these economically important, highly toxic materials cannot be overestimated. Limiting regulation to the state level insures that standards will be uniform statewide. (Cf. City of Watsonville v. State Dept. of Health Services (2005) 133 Cal.App.4th 875, 887-888.) Local decisions regulating pesticide use, varying from county to county, can be justified only if applied within the context of the overall regulatory scheme. (Cf. Paredes v. County of Fresno (1988) 203 Cal.App.3d 1, 10.) When private litigation threatens to interfere with the Legislature’s clearly expressed policies, it is precluded. If it were not, the potential for conflict between the Legislature’s balance of the various competing interests and those asserted by individuals in a private dispute would generate an intolerable amount of uncertainty for the litigants and for the agricultural industry as a whole. Our overriding concern, therefore, is with the potential that plaintiff’s claims could interfere with the Legislature’s express intent to insure statewide regulation of pesticide use.
2. The Pesticide Laws Do Not Displace All Common Law Tort Claims
By the time of trial, the deputy commissioner had found that both the 2006 and the 2007 applications were legal and the main thrust of the defense was that defendant had complied with its permit conditions, that it had done what other pesticide applicators would have done in the same situation, and that the deputy commissioner’s findings showed that defendant had not breached any duty of care to plaintiff. In short, the case went forward as a simple tort case seeking only monetary damages.
Although the scope of the statutory and regulatory scheme is broad, it provides no means of compensation for crop losses resulting from pesticide use. Section 14003 specifies that the article requiring permits for restricted use pesticides “does not relieve any person from liability for any damage to the person or property of another person which is caused by the use of any restricted material.” Since the law makes no provision for a damages remedy, section 14003 implies that injured persons retain the right to sue for damages under the common law. And section 12999.2 expressly confirms that the “remedies or penalties” provided by division 7 are “in addition to the remedies or penalties available under any other law.” Given these savings clauses, it is reasonable to conclude that the Legislature intended, as a general matter, to allow for common law claims seeking damages. Defendant does not contend otherwise.
3. The Exhaustion Doctrines Do Not Apply
Defendant’s challenge to plaintiff’s damage claims rests in large part upon the fact that the deputy commissioner found defendant had not violated title 3, section 6614. Whether or not the deputy commissioner’s interpretation of that section was correct, the fact was that her finding of no violation in 2006 was not submitted to any administrative challenge and was a final decision on the merits of the issue she decided. She reached the same conclusion on her review of the 2007 pesticide applications. Defendant argues that these findings should have been given collateral estoppel effect. Amici curiae, California Farm Bureau Federation and Air Coalition Team maintain that the suit should have been dismissed at the outset because plaintiff failed to exhaust administrative remedies challenging the deputy commissioner’s no-violation finding. Neither defense was litigated below. In any event, we reject the arguments.



TO BE CONTINUED AS PART II….



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